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ELRCPartially AllowedNot stated in the judgment extract· [2016] KEELRC 155 (KLR)

Grace Waithera Hungi v Riley Services Limited [2016] KEELRC 155 (KLR)

Employment and Labour Relations Court of Kenya
20 December 2016
BOByram Ongaya
613 words in judgment
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The bottom line

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What this practically means

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Executive summary

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Following a judgment delivered on 04.11.2016 in which the claimant was awarded Kshs.31,685.00 against the respondent and the respondent's counterclaim was dismissed, with the respondent ordered to pay costs of both the claim and counterclaim, the respondent (through Jonathan Musomba's affidavit, by Obura Mbeche & Company Advocates) filed a notice of motion under section 16 of the Employment and Labour Relations Court Act, 2011 and rule 33 of the ELRC (Procedure) Rules seeking review of the costs order. The applicant argued there was an error on the face of the record: the claimant had claimed Kshs.201,206.00 but recovered only Kshs.31,685.00, so it was unjust for the respondent to bear 100% of costs. The claimant (by Gori, Ombongi & Company Advocates) opposed, maintaining the costs order was not erroneous and the bill of Kshs.217,395.00 filed on 18.11.2016 should proceed to taxation. The court applied the principle that costs follow the event, computed the claimant's success margin at 16.5% (Kshs.31,685.00 out of a net claim of Kshs.192,576.08), and held that compelling the respondent to pay full costs would be manifest injustice amounting to an error on the record justifying review. The court allowed the application, reviewed the judgment by deleting the costs order and substituting fixed costs of Kshs.35,000.00 payable by 15.01.2017, and ordered each party to bear its own costs of the application. Judgment signed, dated and delivered at Nyeri on 20th December, 2016 by Byram Ongaya, Judge.

Key legal issues

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Whether an award of full costs to a claimant who succeeded on only 16.5% of her claim constituted an error apparent on the face of the record justifying review

Holding

Yes - the court found manifest injustice in ordering the respondent to pay 100% of costs where the claimant recovered only Kshs.31,685.00 out of Kshs.192,576.08 claimed, and the respondent's counterclaim was dismissed

Reasoning

The court applied the principle that costs follow the event. Comparing the claim of Kshs.201,206.00 (net Kshs.192,576.08) with the award of Kshs.31,685.00, the claimant's margin of success was 16.5%. The respondent's counterclaim of Kshs.8,629.92 was declined. The court held that condemning the respondent to full costs amounted to manifest injustice, which constitutes an error on the record justifying review under section 16 of the ELRC Act and rule 33 of the Procedure Rules. The court fixed costs at Kshs.35,000.00 to bring the matter to a close without further costs.

p. 3

Legal principles established

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  • Costs of a suit follow the event, and where a claimant succeeds on only a fraction of the claim, it is a reviewable error on the face of the record to condemn the successful-in-part defendant to pay 100% of the costs.

Court orders

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  1. 1.The judgment delivered on 04.11.2016 is reviewed by deleting order (c) and substituting an order that the respondent pay the claimant's costs of the suit fixed at Kshs.35,000.00 payable by 15.01.2017, failing which interest is payable at court rates from the date of the judgment till full payment
  2. 2.Each party to bear own costs of the application
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act, 2011 and rule 33 of the Employment and Labour Relations Court (Procedure) Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Grace Waithera Hungi v Riley Services Limited [2016] KEELRC 155 (KLR)", Case Analysis (2016). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/155/eng@2016-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.